Q: Dear Ethics Lawyer, Yesterday I received findings of fact and conclusions of law in which the judge in a court-tried case decided against our client. This morning, I received a copy of an e-mail to the judge from opposing counsel congratulating the judge on what she characterized as a scholarly decision and bemoaning the fact that the judge was recently passed over for an appellate court appointment. I believe from the tone and content of the email that this was sent to me by mistake, and it was actually intended as a private message. Was this an improper ex parte communication? Do I have obligation to report this conduct?
Continue Reading July 1, 2024 Issue – Ex Parte CommunicationsThe twice-monthly “Dear Ethics Lawyer” column is part of a training regimen of the Legal Ethics Project, authored by Mark Hinderks, former managing partner and counsel to an AmLaw 200 firm. Read More
Duties to Opponents and Third Parties
July 3, 2023 Issue – Third-Party Witnesses
By Mark Hinderks on
Q: Dear Ethics Lawyer, I represent a client in litigation during discovery. May I tell an unrepresented third-party witness that they are not obligated to speak to opposing counsel about the matter? May I ask our client to reach out to third-party witnesses with which the client has an ongoing relationship to ask them not to speak to opposing counsel about the matter?
Continue Reading July 3, 2023 Issue – Third-Party WitnessesNovember 1, 2022 Issue – Inadvertent Receipt of Confidential Information
By Mark Hinderks on
Q: Dear Ethics Lawyer, I just received an email from an opposing lawyer with whom I’ve been negotiating a deal. It looks like he may have inadvertently hit “reply” rather than “forward,” as he appears to be talking to a business person at his client.
Before I realized that it was not meant for me, I read his recommendation that the client accept our offer, given problems with the validity of certain patents on assets involved. I’m confused on my obligations – at one time there was an ABA opinion that I think said I couldn’t keep or use this information. Is that still the rule? Am I supposed to destroy or delete this now? Do I tell him I received it? Can I and should I pass the info along to my client (it’s pretty material to their deal)?
July 15, 2022 Issue – Asking Current and Former Employees Not to Communication with Adverse Party
By Mark Hinderks on
Q: Dear Ethics Lawyer, I represent a corporate client in litigation. May I instruct or ask the client’s employees not to speak to opposing counsel about the case? May I instruct or ask the client’s former employees not to speak to opposing counsel about the matter?
Continue Reading July 15, 2022 Issue – Asking Current and Former Employees Not to Communication with Adverse PartyFebruary 15, 2022 Issue – Correcting Adversary’s Mistake
By Mark Hinderks on
Q: Dear Ethics Lawyer, I represent a company threatened with suit. The opposing lawyer’s demand letter states that in the absence of settlement, she will file a lawsuit against our client on July 1, the last day of the statute of limitations. I know that she has made a counting mistake and that the limitations period actually runs a day earlier, on June 30. Am I obligated to correct her mistake, or can I simply let the time run? As a matter of professionalism, may I correct her mistake or does my duty to our client mandate that I stay silent?
Continue Reading February 15, 2022 Issue – Correcting Adversary’s Mistake